Sex, lies and legal theory: Feds probe LA archdiocese

Paul Moses January 30, 2009 - 11:24am

According to news reports, the Archdiocese of Los Angeles is enveloped in a federal grand jury investigation involving its handling of priests who sexually abused minors. Other prosecutors have conducted similar investigations and brought no charges. But in this case, the U.S. attorney in Los Angeles, Thomas O'Brien, has come up with a novel use of a federal criminal law as the basis for a possible case, according to sources quoted in various reports.The prosecutor is looking to see whether church officials violated the federal "honest services" fraud law, reports[1] the AP's veteran LA legal writer Linda Deutsch. She adds:

The law, which makes it illegal to scheme to deprive others of their right to honest services, has most often been used to prosecute politicians and chief executive officers of corporations. It has never been used against a church.

What it means is that the federal government is investigating whether church leaders such as Cardinal Roger Mahony committed a crime by being dishonest in their dealings with the Catholic faithful of the Archdiocese of Los Angeles.Some of the news coverage has been very skeptical of such a case. The Los Angeles Times devoted an article[2] to describing a number of cases in which prosecutor O'Brien made questionable use of federal law.The AP quoted Notre Dame law prof G. Robert Blakey, who helped design the "honest services" law, as saying it was "outrageous" that the federal government was in the case.And it certainly raises serious questions about government intrusion in religion. Should the government be able to determine the proper relationship between a bishop and his flock?Cardinal Mahony has said he was "mystified" by the investigation. But one can imagine a set of facts that would lead a prosecutor to consider whether federal fraud laws applied. The repeated transfer of priests who abused children time and again could be seen as perpetrating a criminal fraud if it was accompanied by lies to the parishioners about the background of the priests in question or the reason for the transfers.It remains to be seen if the "honest services" statute, which the courts have sometimes tried to limit, could conceivably apply here - whether there was an intent to defraud. (The law is an add-on to the federal mail fraud and wire fraud statutes that makes it a crime "to deprive another of the intangible right of honest services.")The "honest services" law was intended to help prosecutors combat sleazy politicians who couldn't quite be reached with bribery and exortion statutes. But, as Prof. Blakey, the author of the federal racketeering law, would know, such laws can often have a much broader reach than originally thought.